The Issue Whether Respondent, a certified correctional officer and a certified instructor, committed the offenses alleged in the Administrative Complaint issued November 16, 2004, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer and as an instructor. At all times relevant to this proceeding, Respondent was employed by the Florida Department of Corrections (DOC) at its Indian River Correctional Institution (IRCI) with the rank of Major. At all times relevant to this proceeding, Ken Torres was employed by the DOC at IRCI with the rank of Lieutenant. On June 11, 2003, Tvaris Burch, Errol Whiley, and Keith Conley were inmates at IRCI. At no time did any of these three inmates have authorization to be in Respondent’s office at IRCI. The only door to Respondent’s office opens to a long hallway. This door is normally locked. At approximately 6:15 p.m. on June 11, 2003, Respondent entered his office at IRCI and was followed by Lt. Torres. Respondent and Lt. Torres saw three inmates on the floor attempting to hide under Respondent’s desk. Each inmate attempted to conceal his identity by pulling his tee shirt up over his head. It is undisputed that both Respondent and Lt. Torres ordered the three inmates to come out from under the desk and the inmates refused those orders. It is also undisputed that the inmates came out from under the desk after Respondent threatened to order Lt. Torres to spray them with chemical agents. What happened next is the center of the dispute in this proceeding. Petitioner alleged that Respondent kicked one of the inmates and that he kicked and punched another inmate as they came out from under his desk. Petitioner also alleged that Respondent failed to file a mandatory Use of Force Report and that he lied to an investigator (Mr. Glover) in a sworn statement. Respondent asserted that he did not kick or otherwise use unauthorized force against any of the three inmates, that he had no reason to file a use of force report, and that he did not lie to the investigator. In support of its allegations, Petitioner presented the testimony of inmate Burch, Mr. Glover, and Lt. Torres. In addition, Petitioner presented the investigative report prepared by Mr. Glover and certain affidavits gathered by Mr. Glover during the course of his investigation. The following facts are not in dispute. After the three inmates came out from under the desk and were on their feet, they were ordered to remove the tee shirts from their heads and were identified as being inmates Burch, Whiley, and Conley. They were stripped searched by Respondent and Lt. Torres and contraband was removed from them. Additional security was called and took the three inmates to the prison nurse for a pre-confinement physical. This type medical examination is mandatory for an inmate about to be confined for disciplinary purposes. The inmates did not complain to anyone that they had been injured or mistreated by Respondent or by anyone else. The nurses noted no injury on any of the inmates. The three inmates were then confined for disciplinary reasons. An incident report was written and a Disciplinary Report was filed for each of the three inmates. Neither Respondent nor Lt. Torres filed a Use of Force Report, which is a mandatory report after physical force is used against an inmate. On June 12, 2003, approximately 24 hours after the incident in Respondent’s office, both inmate Burch and inmate Whiley declared a medical emergency. Both inmates were promptly taken to the medial unit and examined by prison nurses. Inmate Burch told nurse Rhea Harris that he had been injured by being kicked in the head, but he would not identify the person who kicked him. At the final hearing, inmate Burch testified that Respondent kicked him in the head as he was coming out from under the desk and in the knee when he tried to stand up. He further testified that the blow to the knee caused him to fall to the floor, which broke his glasses. Ms. Harris observed a bump on the side of inmate Burch’s head that could be consistent with inmate Burch’s being kicked.5 Inmate Whiley was seen by Nurse Debra Barriner on June 11 and June 12, 2003. On June 12, 2003, inmate Whiley told Ms. Barriner that he had a sore neck and a sore area on his face on the left cheek. Ms. Barriner observed areas of slight swelling and discoloration that were consistent with inmate Whiley’s complaints. Inmate Whiley refused to tell the nurse what caused his neck and left cheek to become sore. In an affidavit subsequently secured by Mr. Glover, inmate Whiley alleged that Respondent had kicked him as he was coming out from under the desk and hit him in the stomach after he stood up. In an affidavit secured by Mr. Glover, inmate Conley stated that he was not struck by Respondent on June 11, 2003, but that he saw Respondent strike inmates Burch and Whiley. Approximately a week after the incident in Respondent’s office, corrections officers intercepted a note being passed from the cell of inmates Burch and Whiley to the cell of inmate Conley. This note was turned over to Lt. Torres, who was the shift supervisor, who testified that he threw the note away and could not recall its details. Lt. Torres did recall that the note made a reference to his being promoted as a result of the allegations that had been made against Respondent. In a sworn interview given to Mr. Glover, Lt. Torres stated that he saw Respondent kick inmates Burch and Whiley. He repeated that statement at the formal hearing. On closer examination, Lt. Torres testified that he did not witness Respondent make physical contact with any of the inmates, but that he saw him making kicking motions in the directions of the inmates. On further examination, the following exchange occurred between Petitioner’s counsel and Lt. Torres beginning at page 85, line 22 of the Transcript: Q. Let me ask you this: If you did not see Major Passino actually strike an inmate, why then did you feel that it was necessary to report such an incident.[6] A. Why did I feel that? That’s my responsibility. Q. At the time that this incident occurred, why did you consider that there had been a use of force. A. Why? Q. Yes. A. Only because of what the inmates said, that they were injured, did I suspect that there was a use of force. Q. And that was only after the inmates had declared a medical emergency – A. Yes, sir. Respondent’s testimony that he did not use unauthorized force against inmates Burch and Whiley is found to be credible. The conflict in the evidence is resolved by finding that Petitioner failed to prove by clear and convincing evidence that Respondent battered inmate Burch or Whiley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing all counts of the Administrative Complaint. DONE AND ENTERED this 24th day of, June, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2005.
The Issue Whether the actions charged in the Administrative Complaint in the case of Respondent Kenneth Manderville, (Mr. Manderville), demonstrate that he does not have the moral character to qualify as a correctional and law enforcement officer as provided in Sections 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code.
Findings Of Fact Mr. Manderville holds correctional and law enforcement certificates issued by the Commission pursuant to the power vested in the Commission by Section 943.12(3). Mr. Manderville was employed as a deputy with the Putnam County Sheriff's Office for eight years, achieving the rank of sergeant. He was terminated for cause on October 11, 2000. Pursuant to Section 943.12(3), the Commission is empowered to certify and to revoke the certification of officers. Betty Prevatt (Mrs. Prevatt) is a resident of Palatka, Florida. On or about June 25, 2000, Mrs. Prevatt and her husband were involved in a domestic dispute. During the course of this dispute, her husband reached for his shotgun. As a result, Mrs. Prevatt fled her residence and ran down the adjacent highway. A helpful citizen rescued her by providing her with an automobile ride to the Putnam County Sheriff's Department. Later in the evening of June 25, 2000, at the Putnam County Sheriff's Department, Mrs. Prevatt came into contact with Sergeant Manderville, during the course of filing a domestic violence complaint with the Putnam County Sheriff's Office. Subsequently, Sergeant Manderville caused the arrest and incarceration of Mr. Prevatt. Thereafter, Sergeant Manderville gave Mrs. Prevatt a ride in his patrol car to her home. While at the Prevatt home, Mrs. Prevatt told Sergeant Manderville that she did not wish to spend the night in her home so he told her to return to the Sheriff's Department in her automobile. Mrs. Prevatt came to the Sheriff's Department, as instructed by Mr. Manderville, around 11:30 P.M. Mr. Manderville told her to follow him in her car. He led her to a house owned by Mr. Manderville's parents. They entered the house. Mr. Manderville was in uniform and on duty. Subsequently he removed his uniform and engaged in sexual intercourse with Mrs. Prevatt. Thereafter, he telephoned a woman's shelter and Mrs. Prevatt spent the night there. Subsequently Mrs. Prevatt called Mr. Manderville, on more than one occasion during the course of the next few days, and inquired as to the process required to extract her husband from the Putnam County Jail. Eventually Mr. Manderville told her that he would help her win the release of her husband, and ostensibly to facilitate that purpose, instructed her to meet him at the Kentucky Fried Chicken restaurant after sunset. She did as requested and he told her to return to his parents' house. She complied with his direction. Upon entering his parents' house, he insisted on having sexual intercourse again. She submitted. Except during the period in which he was engaged in sexual acts, he was in uniform and on duty. Afterwards, she returned to the shelter in which she was then residing, which was located in St. Augustine. On a subsequent occasion, Mr. Manderville asked Mrs. Prevatt to meet him at the Sheriff's Department, allegedly for the purpose of finishing paperwork regarding Mr. Prevatt. In response, she met him as requested. Thereafter, he took her to an interview room, had sexual intercourse with her, withdrew, and ejaculated on the carpet. Except during the period in which he was engaged in sexual acts, he was in uniform and on duty. Mrs. Prevatt's husband was released from jail a few days after his arrest but Mrs. Prevatt continued to live in the shelter. After a period of about two months, she went to the sheriff's office to retrieve her husband's shotgun. During a conversation at the Sheriff's Department, Mr. Manderville asked her to meet him after dark at the post office in Palatka. She did as asked. Mr. Manderville asked her to get in his patrol car and he then took her to his house in Mannville. After arriving at Mr. Manderville's house in Mannville, he required her to disrobe, had intercourse with her twice, and took pictures of her bent over the hood of his patrol car, while nude. All of this occurred while he was on duty and, except during the sexual activity, he was attired in his uniform. This was the last time that they had sexual contact. Almost three months later, Mrs. Prevatt again established a relationship with her husband. Mr. Prevatt began to inquire about Mrs. Prevatt's relationship with Mr. Manderville and she revealed what had occurred. On September 28, 2000, she gave a detailed report of the matter to Lieutenant Roger W. Sassaman and Detective Walter Perkins of the internal affairs section of the Putnam County Sheriff's Department. On October 11, 2000, Mr. Manderville was discharged from his employment with the Putnam County Sheriff's Department. Mr. Manderville asserted that Mrs. Prevatt's statements with regard to sexual activity were fabrications. He claimed that Mrs. Prevatt was infatuated with him. He asserted that she called him on many occasions in furtherance of what she wanted to be a continuing romantic relationship but that he had resisted her. Mrs. Prevatt is a woman whose life has been beset with problems. At the time of the hearing she had endured an abusive marital situation for eighteen years. She has experienced problems maintaining steady employment and she has abused prescription drugs. Nevertheless, it is concluded that Mrs. Prevatt's version of the story was, in pertinent parts, true, and that Mr. Manderville's version lacks credibility. In arriving at that conclusion, the following matters were considered: Mrs. Prevatt was able to describe with particularity the interior of Mr. Manderville's parents' house and the interior of Mr. Manderville's residence. If she had not been taken to these places, she would not have been able to glean these details. Moreover, Mrs. Debbie Manderville, who married Mr. Manderville in 1996, in her attempt to discredit Mrs. Prevatt's knowledge of the interior of the two houses, succeeded only in demonstrating that Mrs. Prevatt did have an accurate recollection of the interiors. Mrs. Prevatt was aware that Mr. Manderville was married to a nurse because she heard him call her at the local hospital from Mrs. Manderville's home. This call was undoubtedly made for the purpose of insuring that Mrs. Manderville would not intrude while he was present there with Mrs. Prevatt. Mrs. Prevatt knew that Mr. Manderville's entire body, except for the pubic area, was cleanly shaved, at times pertinent. Mr. Manderville confirmed this in his testimony. Had she not seen him in the nude, she would not have been aware of this. Mrs. Prevatt was able to point out a spot on the interview room carpet where she claimed semen residue would be found. Mr. Manderville, when questioned about this at the hearing, did not deny that semen residue was found at that exact spot she identified. He stated, however, that it was produced not from illicit activity with Mrs. Prevatt, but through self- abuse. His version regarding the presence of the semen was unbelievable. Upon consideration of all of the facts and circumstances elicited at the hearing, it is found by clear and convincing evidence that on four occasions Mr. Manderville had sexual intercourse with Mrs. Prevatt while he was on duty, when she was emotionally distraught, and under circumstances where he used his power as a law enforcement officer to take advantage of her in a stressful situation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a final order be issued revoking the certification of Mr. Manderville as a law enforcement and correctional officer. DONE AND ORDERED this 19th day of August, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2003. COPIES FURNISHED: Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent, Armor Correctional Health Service, Inc. (“Armor”), discriminated against Petitioner, Vadim Troshkin (“Petitioner” or “Mr. Troshkin”), based upon his age, national origin, race, or sex, in violation of section 760.10, Florida Statutes (2015).1/
Findings Of Fact Armor is an employer as that term is defined in section 760.02(7). Armor provides healthcare services in correctional facilities. Armor has a contract with the Jacksonville Sheriff’s Office (“JSO”) to provide healthcare services in correctional facilities in Duval County. Petitioner is a Caucasian male over the age of 40. His country of origin is Ukraine. Sometime in February 2018, Mr. Troshkin applied for an Advanced Registered Nurse Practitioner (“ARNP”) position with Armor at the detention facility adjacent to the JSO headquarters on Bay Street in downtown Jacksonville. There is no dispute that Mr. Troshkin is a licensed ARNP in the State of Florida. At the time Mr. Troshkin applied for the job, Vicky Hailey was Armor’s regional manager overseeing the Jacksonville detention facility. Ms. Hailey’s duties included interviewing and hiring applicants to work in the facility. On March 21, 2018, Ms. Hailey conducted an in-person interview with Mr. Troshkin at a job fair in Jacksonville. Ms. Hailey was impressed by Mr. Troshkin and made him a job offer on the spot. Mr. Troshkin was given a “provisional offer” to work for a salary of $87,000 per year. The offer was conditioned on Mr. Troshkin’s passing a JSO background screening. JSO mandates this security clearance for any Armor employee working at the Jacksonville detention facility. Mr. Troshkin accepted the provisional offer. Mr. Troshkin testified that he was especially eager to obtain this position because he lived in a condominium directly across the street from the JSO headquarters and the detention facility. He believed that his proximity to the workplace would be an advantage to him and to his employer. When Ms. Hailey made the provisional offer to Mr. Troshkin on March 21, 2018, she instructed him to contact Selena McClain, an administrative assistant at the Jacksonville detention facility, to schedule a time to be fingerprinted for the background screening. Ms. McClain met Mr. Troshkin at the Jacksonville detention facility on March 22, 2018, and escorted him to the JSO headquarters for fingerprinting. Ms. McClain’s job duties included coordinating the fingerprinting of applicants and corresponding with the JSO as to the status of the background screenings. Ms. McClain had no authority to make decisions regarding Armor’s hiring process. Background screenings are usually completed within 48 hours of fingerprinting. If issues come up during the screening, the process can take as long as a month. No employee of Armor has any control over the time taken by the JSO to complete its background screening process. On March 26, 2018, Sergeant Shaun Taylor of the JSO sent an email to Ms. McClain stating as follows: Vadim Troshkin’s background results came back with criminal history that needs to be reviewed by FDLE.[3/] I submitted the paperwork and I will let you know if they request anything further. On the afternoon of April 10, 2018, Ms. McClain received another email from Sgt. Taylor. This email read as follows: FDLE just called about Vadim Troshkin and stated that they are having problems getting records from San Diego. They asked me to reach out to see if he has any documentation that shows the disposition and severity for each of his charges. Thanks. Also on April 10, 2018, Ms. McClain had a discussion with Ms. Hailey as to delays in the background checks for Mr. Troshkin and two other candidates for employment. Both of the other candidates were female. Ms. Hailey made the decision to stop the screening process as to these three candidates and to withdraw their provisional job offers. Ms. McClain had no role in the decision, aside from providing information to Ms. Hailey. Ms. Hailey directed Ms. McClain to inform Sgt. Taylor that the JSO could stop the background screening process as to these three candidates. Ms. McClain sent Sgt. Taylor an email to that effect at 3:19 p.m., on April 10, 2018, a little more than 20 minutes after Sgt. Taylor’s email to her about the problems FDLE was having in obtaining records for Mr. Troshkin. At the hearing, Ms. Hailey testified that she needed to fill the ARNP vacancy at the Jacksonville detention facility as soon as possible. She had no way of knowing how long Mr. Troshkin’s background screening would take or whether it would result in a security clearance. Ms. Hailey had other qualified candidates who had already passed their background screenings, so she made the decision to withdraw the offer to Mr. Troshkin and give the ARNP job to one of the other candidates. Because of the JSO’s requirement that Armor employees pass a background screening, Mr. Troshkin was technically not qualified for the ARNP position at the time Ms. Hailey needed to fill it. Mr. Troshkin offered no evidence that any other applicant whose background screening was taking longer than expected, and whose position Armor deemed critical to fill, was treated differently than he was. Ms. Hailey testified that her reasoning was the same as to the two female candidates whose offers were withdrawn. She stated that withdrawing offers because of problems or delays with the background screening process was not uncommon. On April 10, 2018, at 3:59 p.m., Ms. McClain sent Mr. Troshkin, via email, a letter on behalf of Armor that read as follows: Dear Vadim, We regret to inform you that you failed to pass the Jail’s security clearance. Therefore, Armor is unable to extend an offer of employment. As always we wish you well in your future employment endeavors. Ms. McClain testified that this letter was generated via a template. She chose from a menu the language that most closely applied to Mr. Troshkin’s situation. Unfortunately, the language chosen from the menu left Mr. Troshkin with the understandable impression that he had failed the background screening, when in reality the screening had never been completed. Mr. Troshkin phoned Ms. McClain, who told him that his background screening report had not been received by Armor and therefore the company had decided to move on to another job candidate. Mr. Troshkin was perplexed. He testified that he had no felony or even misdemeanor convictions on his record. His only problem with law enforcement had been an “unpleasant incident” in California, which he referred to as an “infraction.” He stated that he had been unlawfully arrested but that the incident had resulted in no criminal conviction. The case had been closed and sealed. Mr. Troshkin declined to offer any more details about the California incident. Mr. Troshkin began thinking about his dealings with Armor. Ms. Hailey and the other persons he met during the interview process had been friendly and positive. Ms. McClain, however, had been difficult. At the outset of the fingerprinting process on March 22, 2018, the JSO’s fingerprint machine was not functioning properly. Mr. Troshkin and Ms. McClain were forced to make small talk for about an hour while the machine was being repaired. Mr. Troshkin testified that things were not going badly until he mentioned that he was a supporter of President Trump. Ms. McClain, who is African American, castigated him, wondering aloud why “you people” come here and support President Trump. In the context of the conversation, Mr. Troshkin took “you people” to mean white immigrants from Eastern Europe. Looking back at how events had transpired, Mr. Troshkin convinced himself that Ms. McClain was behind his rejection by Armor. He testified that he contacted an unidentified person with the FBI who told him that his background screening results had been sent to the JSO on the day after he was fingerprinted. Therefore, Ms. McClain must have done something to prevent the results from reaching Armor, or have lied about the results not reaching the JSO. Mr. Troshkin’s vague reference to his contact in the FBI cannot be credited. Also, Ms. McClain was in fact simply acting as a conduit, passing on information that Sgt. Taylor had provided to her, though Mr. Troshkin did not know that at the time. Armor’s role in the background screening process is entirely passive. The Armor employees who testified at the hearing did not know how JSO performs the background screenings or which databases the JSO consults during the screenings. JSO notifies Armor of any delays in the process and, ultimately, whether or not the applicant passes. Armor is not notified as to the reasons why an applicant fails a background screening. Armor is not given a report by the JSO reflecting the results of a background screening. Mr. Troshkin began sending emails to Ms. Hailey and other Armor employees.4/ The first email was sent on April 16, 2018, to Ms. Hailey and Jackie Mattina, an Armor employee who had participated in Mr. Troshkin’s interview at the job fair. The email stated that he had contacted “the Florida FBI background check up,” and the person he spoke with told him that he had been “cleared” on March 23, 2018. He stated that he could not understand why Ms. McClain “keeps saying that they never received any report and I do not pass that background check up.” Later on the same date, Mr. Troshkin sent another email to Ms. Mattina, complaining about the drug dealing that went on near his apartment, “right in front of sheriff office.” He stated that the area was “infested with drug dealers” who “give handshakes to cops sitting right there. But it is me with my infraction ‘disturbance of peace’ is the real threat to the whole justice system and society.” On April 18, 2018, Mr. Troshkin sent another email to Ms. Mattina that stated as follows: Good afternoon, I am still in disbelief that Mrs. McClain ruined my career in jail. It is right in front of my building. I would cover any shift you need coverage. And I am a good guy, no drugs, exercise daily 2 hours, spend 3 hours daily studying and reviewing material. Mrs. McClain windows probably facing my condo pool. If she changes her mind I am right there at the pool. She just need to open window and waive her hand. I looked through the requirement for the position and it says not to have felonies. I have only infraction. 6 years ago. Next year it will not even show in my background check up. Still crying, Vadim Troshkin At some point in this time frame, Mr. Troshkin sent a series of messages to Ms. McClain’s private Facebook account. The messages read as follows: [S]o you decided my fate not to have this job, even if I don’t have any felonies or misdemeanors. Pure racism and discrimination. I qualify for any federal job. I am a good person and good nurse practitioner. I am just tired when some prejudiced people discriminate against hard- working immigrants like me. [D]o you realize how many times cops fabricate complete lies and destroy lives of many people. Do you realize that according to statistics 20% inmates are in jail by fabricated charges. Maybe it is time to stop being a hypocrite and playing righteous as cops can fabricate anything on anybody including you or your family, friends etc. You do not have any idea how much I needed that job and I was going to give 200% of myself into this job. No, you just threw my opportunity away. And completely unfair and even illegally. As an immigrant from ex-Soviet union I experience discrimination mostly on daily basis. And that incident happened only because red-neck cop fabricated all. She, it was she tortured me for 6 hours. I will never forget her happy eyes when she was watching being in horrible pain. She fabricated all of it. [B]ut I forgot you are so righteous, almost saint. On April 22, 2018, Mr. Troshkin came to JSO headquarters and asked to speak with Ms. McClain. He testified that the person at the desk phoned Ms. McClain and that he could hear Ms. McClain screaming over the phone. Mr. Troshkin testified that he could hear Ms. McClain calling him a “criminal” and directing the JSO personnel to either evict or arrest him. Ms. McClain credibly testified that she felt threatened when Mr. Troshkin contacted her via her private Facebook account and she reported the contact to Ms. Hailey, who in turn contacted Armor’s legal counsel. In a letter dated April 18, 2018, Armor’s attorneys conveyed the company’s request that Mr. Troshkin cease and desist his communications to Armor’s employees. Mr. Troshkin complied with the attorneys’ request. Mr. Troshkin testified that he had no complaints about Ms. Hailey or the manner in which he was interviewed and given a job offer. He testified that he never felt that Ms. Hailey harbored any discriminatory intent towards him or ever discriminated against him. Mr. Troshkin testified that the only individual at Armor who discriminated against him was Selena McClain. Ms. McClain credibly testified she had no discriminatory animus towards Mr. Troshkin. She credibly denied that her initial conversation with Mr. Troshkin included any disparaging remarks about his race or national origin. She credibly denied screaming at a JSO employee over the phone that Mr. Troshkin should be arrested. She testified that she did not know his country of origin. As found above, Ms. McClain’s only role in this matter was to pass information from Sgt. Taylor to Ms. Hailey. The decision not to proceed with hiring Mr. Troshkin was made by Ms. Hailey alone and was based on Sgt. Taylor’s information, not on any misinformation allegedly provided by Ms. McClain. In summary, Petitioner offered no credible evidence that he was discriminated against on the basis of his age, national origin, race, or sex. Petitioner offered no credible evidence that he was qualified for the position, given that a mandatory condition for hiring Petitioner was that he receive a security clearance to work in the JSO’s Jacksonville detention facility. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Armor for his termination. Petitioner offered no credible evidence that Armor’s stated reasons for not hiring Petitioner were a pretext for discrimination based on Petitioner's age, national origin, race, or sex.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Armor Correctional Health Services, Inc., did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 31st day of May, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2019.
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character as required by chapter 943, Florida Statutes, and Florida Administrative Code Rule 11B- 27.011, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. (2009).2/ Respondent was certified as a correctional officer by Petitioner on July 8, 2009, and holds Correctional Certificate Number 284876. In February through May, 2010, the time frame relevant to this proceeding, Respondent was employed as a correctional officer at Miami-Dade Correctional Institute ("Miami-Dade CI"). Incident Giving Rise to this Proceeding On or about July 29, 2010, Captain Eric Parrish, a midnight shift supervisor at Miami-Dade CI, convened a meeting of several employees under his supervision. Among those present at the meeting were Respondent and Officer Demetrices Demeritte. The purpose of the meeting was to address rumors regarding alleged sexual activity among staff members while present or on duty at Miami-Dade CI.3/ Ultimately, these rumors were determined to be unsubstantiated. However, at the meeting, Demeritte informed Parrish that Respondent had exposed his penis to her while they both were on duty at Miami-Dade CI. Respondent verbally admitted at the meeting that he did show Demeritte his penis, but stated that she had wanted to see it. Parrish ordered everyone in attendance at the meeting to complete an incident report after the close of the meeting.4/ Consistent with Petitioner's standard practice regarding the completion of incident reports, Parrish requested that the reports be submitted by the end of the shift.5/ This gave the employees approximately four hours to complete their reports. Ultimately, Parrish collected completed incident reports from all in attendance at the meeting, including Respondent. In his incident report, Respondent stated that he and Demeritte had engaged in discussions regarding sexual matters on more than one occasion. Respondent acknowledged that he exposed his penis to Demeritte on one occasion when they had discussed its size, and that upon seeing it, Demeritte took off in her post vehicle. The next day she asked him not to do that again because he was not "her man." Respondent stated that he apologized to Demeritte and considered the matter resolved between them as friends. Based on the information provided in the incident reports, Parrish recommended that Respondent and others be reviewed for disciplinary action. On or about December 6, 2011, Petitioner filed an Administrative Complaint against Respondent, alleging that he had failed to maintain good moral character, as required by section 943.17, by having engaged in acts that constitute indecent exposure pursuant to section 800.03. Violation of section 800.03 is a misdemeanor of the first degree. § 800.03, Fla. Stat. (2009). There is no evidence in the record that Respondent was arrested or prosecuted for, convicted of, or pled guilty or nolo contendere to, a violation of section 800.03. Evidence Adduced at the Final Hearing At hearing, Demeritte testified that while she and Respondent were on duty inspecting the fence line or refueling vehicles or at other posts, Respondent exposed his penis to her on four separate occasions. In doing so, he would tell her to "look" and would watch her while exposing himself. Demeritte testified that on one of these occasions, he stroked his penis. Demeritte testified that she was uncomfortable and offended by Respondent's actions, that she considered his actions vulgar, and that on each occasion, she drove away. After she finally confronted Respondent, he apologized and never exposed himself to her again. The undersigned finds Demeritte's testimony credible and persuasive. Demeritte reported the incidents to the Equal Employment Opportunity Commission. However, not until the July 29, 2010, meeting did she report the incidents to Petitioner. Demeritte claimed that she did not report the incidents due to a "breach of confidentiality." No specific explanation was provided regarding what the breach of confidentiality entailed or why it deterred Demeritte from reporting the incidents before July 29, 2010. At the hearing, Respondent recanted his statement in his July 29, 2010, incident report that he had exposed his penis to Demeritte on one occasion. Respondent testified that the statements in his report were "sarcastic" and that he had needed more time to complete his incident report. However, Parrish credibly testified that near the end of the shift, Respondent told him he was still working on the incident report, but that at the end of the shift, Respondent provided the completed, signed, dated report and did not ask for more time to complete the report. Respondent denied having exposed his penis to Demeritte while on duty, and testified that he previously had performed as a dancer at private functions and that she may have seen his penis under those circumstances. Respondent's testimony on these points was not credible. Consistent with his incident report, Respondent testified that he and Demeritte engaged in discussions of a sexual nature on several occasions. There is no other evidence in the record directly corroborating or refuting this claim. However, the evidence does establish that around the time of the incidents at issue in this proceeding, there was discussion of, and rumors regarding, sexual matters between officers employed on the midnight shift at Miami-Dade CI. Under these circumstances, the undersigned finds credible Respondent's account that he and Demeritte engaged in discussions of a sexual nature. The undersigned does not find credible any claim by Respondent that Demeritte wanted or asked him to expose his penis to her. However, the undersigned finds it plausible that Respondent may not have understood that Demeritte was offended by his actions, particularly if they engaged in discussions of a sexual nature, and also given that she did not tell him, until after the fourth incident, to not expose himself to her. Indeed, once she told him not to expose himself to her, his behavior ceased and he apologized. There is no evidence in the record that Respondent previously has been subject to disciplinary action by Petitioner. Findings of Ultimate Fact Based on the foregoing, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent exposed his penis to Demeritte on four separate occasions, in violation of section 800.03, and that in doing so, he failed to maintain good moral character, as required by section 943.13(7). Respondent's behavior in exposing himself to Demeritte was inappropriate and unacceptable. However, the undersigned finds that the circumstances afoot around the time of Respondent's actions——specifically, discussions and rumors of sexual matters between staff, discussions of a sexual nature between Respondent and Demeritte, and the fact that Demeritte did not tell Respondent to stop exposing himself to her until after he had done so four times——may have created an atmosphere that led Respondent, mistakenly, to believe that such behavior was not a significant departure from the accepted norm on the Miami-Dade CI midnight shift at that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Criminal Justice Standards and Training Commission, enter a final order suspending Respondent's correctional officer certification for a period of six months, imposing two years' probation, and ordering Respondent to undergo counseling. DONE AND ENTERED this 6th day of August, 2013, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 6th day of August, 2013.
The Issue Whether Respondent, a police officer, violated section 951.22(1), Florida Statutes, by conspiring to introduce, take, or attempt to take contraband into the Hamilton County Jail for an inmate of the jail, so as to result in a finding that Respondent has not maintained good moral character; and, if so, the appropriate penalty.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of law enforcement officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified law enforcement officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against law enforcement officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, and holds Law Enforcement Certification Number 313297. She was initially certified on January 8, 2014. On March 11, 2019, Respondent served responses to Petitioner’s First Set of Requests for Admission. Respondent acknowledged at the hearing that her responses were accurate. As discussed at the final hearing, and as reflected in the preliminary statement, Requests for Admissions 1 through 17 were accepted. Respondent has not previously been the subject of any disciplinary action. On February 28, 2017, Respondent was employed as an officer with the City of Jasper Police Department. On that date, Respondent was in a romantic relationship with Derrick Harris. On the morning of February 28, 2017, Mr. Harris turned himself in on an active warrant for what was apparently a misdemeanor offense in Duval County, and held in the Hamilton County Jail in Jasper, Florida. On February 28, 2017, from roughly 10:00 a.m. to roughly 4:35 p.m., Respondent and Mr. Harris spoke by telephone on nine separate occasions, for a total of roughly one hour and 50 minutes.2/ In addition, Respondent visited Mr. Harris in the jail visitation area, separated by glass and using a telephone handset, from 10:23 a.m. until 10:53 a.m. Thus, during the day, Respondent and Mr. Harris spoke for about two hours and 20 minutes. Much of the discussion between Respondent and Mr. Harris centered on how he would be able to come up with a $3,500 cash bond to get him released, and getting money put on the phone so he could make calls from the jail. During telephone call 713077714, which started at 2:17:32 p.m. on February 28, 2017, Respondent was upset that Mr. Harris’s mug shot had appeared on an unofficial website. She was also upset that a rumor was going around that she was responsible for Mr. Harris’s arrest. The tone of her voice ranged from angry to upset to tearful. During the call, Mr. Harris complained of being hungry. It was not the first time he made that complaint. He also stated, “I wish I had a cell phone -- if I had a cell phone I’d talk to you all night.” After a brief discussion, initiated by Mr. Harris, of how Respondent could slip a sack of Arby’s and a phone in her police vest, the idea was quickly shot down, with Mr. Harris stating that “I don’t want you to do nothing to jeopardize your job.” The entirety of the discussion lasted scarcely more than 90 seconds, and quickly reverted to a continuation of the discussion of how to raise bond money. Neither Arby’s nor a cell phone was brought up again. Respondent testified convincingly that “I didn’t -- I really didn’t plan on actually taking [anything in] -- I was just explaining over the phone because I was upset.” Her testimony is accepted. Idle chatter does not manifest intent to commit a crime, nor does it evince an agreement to do so. The evidence in this case establishes clearly, and it is found that Respondent had no actual intent to bring Arby’s or a cell phone, to Mr. Harris at the jail, that Respondent and Mr. Harris made no agreement to do so, and that she did not attempt to do so. Captain Bennett established that the Hamilton County Jail has: standing policy as per the Sheriff. When we come -- when an inmate comes into the jail facility, and they are indigent and don't have any money on them at the time, or they come in before commissary has arrived, he allows for a one-time initial issue, if there is someone that can bring underwear, socks, T-shirts, boxers, soap, deodorant, and basically hygiene items as for someone to, you know, be able to survive in the jail setting for -- you know, until they can get money there. Because everything else after that is usually purchased off of commissary, sir. Mr. Harris was new to the jail. He stated on several occasions during his conversations with Respondent that he did not have any “canteen.” Thus, despite the fact that “clothing” is listed as an item of contraband in section 951.22(1), and that Petitioner pled Respondent’s conspiracy to introduce clothing as an element of the second Amended Administrative Complaint, the evidence firmly establishes that Respondent’s delivery of underwear, t-shirts, socks, and hygiene items to the jail for the benefit of Mr. Harris was done through regular channels as duly authorized by the Sheriff or officer in charge. During the course of telephone call 71307815, which started at 3:15:45 p.m. on February 28, 2017, Mr. Harris can be clearly heard, on more than one occasion, asking jail staff what could be brought to him. The replies of jail staff were indistinct. However, Mr. Harris told Respondent that he could have socks, a t-shirt, deodorant, and the like. It was reasonable, based on Mr. Harris’s recitation, for Respondent to (correctly) understand that clothing, including socks and a t- shirt, were authorized by the correctional officer in charge. Mr. Harris stated that the correctional officer “didn’t say nothing about food.” He suggested that Respondent bring a couple of packs of ramen noodles and “see if they’ll let you give them to me.” Later during that call, Mr. Harris stated that Respondent would have “to ask them could I get the noodles.” It is clear that Mr. Harris wanted some ramen noodles, and that Respondent was willing to bring them. It is equally clear from the evidence as a whole that neither Respondent nor Mr. Harris intended to introduce the ramen noodles, or any other item, into the jail without permission from the correctional officer in charge. In order to avoid bringing anything improper into the jail, Respondent decided, “I’m going to message Captain Bennett over the Facebook because I was friend with him on Facebook. And I asked him what was allowed to be brought in.” At 4:07 p.m. on the afternoon of February 28, 2017, Respondent sent a direct message to Captain Bennett asking (verbatim): Would i be able to bring him some soap and deodorant and something to eat in there If they gonna pick him up for transport will i be able to see him before he go? Captain Bennett responded that “You can take him some soap and deodorant. I’m sure they will if the bond isn’t posted. Will have to see what’s going on about a visit.” The first and third sentences of the response are fairly straightforward, and directed towards Respondent’s first request (soap and deodorant), and her last request (a visit). The second sentence is ambivalent if not confusing, and could reasonably be understood to her second request, and to mean that jail staff would allow Respondent to bring Mr. Harris some food “if the bond isn’t posted.” In the context of the questions asked by Respondent, that is the most logical meaning, since soap and deodorant and a possible visit were already specifically addressed. Respondent gathered some items, including boxers, t-shirts, socks, body wash, deodorant, and the like, and placed them in a plastic bag with several packages of ramen noodles. There was no evidence that Respondent attempted to conceal the noodles. Respondent took the plastic bag to the jail. She drove her personal vehicle and was not in uniform. She tapped on the glass behind, which the correctional officer on-duty sat, and asked the correctional officer if the items could be taken to Mr. Harris. Respondent did not ask to take the bag to Mr. Harris herself. A correctional officer came from within the secured area, “and took out of the bag what was allowed in there.” There was no testimony as to which of the items, including the ramen noodles, made their way to Mr. Harris, and which, if any, were returned to Respondent. Nonetheless, Respondent was not trying to, and did not attempt to introduce contraband into the jail outside of regular channels and without the actual knowledge and authorization of the correctional officer in charge.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the second Amended Administrative Complaint. DONE AND ENTERED this 24th day of June, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2019.
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.
Findings Of Fact Anderson is a certified correctional officer, certified by Petitioner. Her certificate number is 190482. At the time of the incident at issue, Anderson was working for the Wackenhut Corrections Corporation as a correctional officer at South Bay Correctional Facility. On May 27, 2003, Patricia Johns (Johns) was in the Wal-Mart parking lot in Clewiston, Florida. Johns was taking groceries she had purchased from a shopping cart and placing them in her vehicle. She placed her sweater and her purse in a shopping cart while she was loading the groceries. Johns retrieved her sweater from the cart, but left her purse in the cart. She pushed the cart with the purse in it between her vehicle and another vehicle, got into her vehicle, and left the parking lot. A few seconds later Anderson pulled into Johns' parking space. Anderson's vehicle bumped the shopping cart, pushing it forward a couple of feet. She got out of her vehicle, went over to the cart, and removed the purse. Anderson, while wearing her correctional officer uniform, placed the purse in the backseat of her vehicle, took her son out of the vehicle, and went into Wal-Mart. She did not take the purse into Wal-Mart and attempt to locate the owner. The purse was a Tommy Hilfiger brand valued at $50. Inside the purse was a wallet with $18 in cash, a credit card, and blank checks. A cellular telephone valued at $350 was also in the purse. Anderson picked up some prescriptions at Wal-Mart, returned to her vehicle, and eventually returned home. She knew that the purse did not belong to her, but claimed that she was planning to turn the purse in at the police department the next day. Her claim that she was going to turn the purse into the police is not credible based on later actions. Sometime after she had returned home, she remembered she had put the purse in the back of her vehicle and asked her fiancé to get the purse. When he went to retrieve the purse, only the wallet remained minus the cash. During the time that Anderson left Wal-Mart and the time that her fiancé discovered that the purse, cash, and cellular telephone were missing, both Anderson and her fiancé had driven the vehicle while carrying other passengers. Anderson did not remove the purse, cash, and cellular telephone from the vehicle. She believes that one of the other passengers who had been riding in her vehicle on May 27, 2003, took the purse, cash, and cellular telephone. The next day, Anderson placed the wallet in a zip-lock plastic bag and dropped it in a drop box at the post office. She did not notify the owner of the purse that she had taken the purse from the Wal-Mart parking lot, and did not notify the police until later that she had taken the purse. Johns reported to the police that her purse had been stolen. An investigation ensued, and it was learned based on a video tape of the Wal-Mart parking lot on May 27, 2003, that Anderson had taken the purse. A police officer attempted to contact Anderson by telephone concerning the incident. On June 9, 2003, Anderson gave a taped interview to police officers, in which she admitted taking the purse out of the shopping cart and placing it in the backseat of her car. She was arrested for grand theft and released on the same day after posting a bond. An information for grand theft, a third degree felony, was entered against Anderson on August 13, 2003. She agreed to make restitution in the amount of $419, and a Notice of Nolle Prosequi was entered on December 5, 2003. As a result of the incident at issue, Anderson was dismissed from her position as a correctional officer at South Bay Correctional Facility. She is sincerely sorry for her actions and has made restitution for the property taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lenora R. Anderson is not guilty of a violation of Subsection 943.1395(6), Florida Statutes (2003); finding that she failed to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2003), and defined by Florida Administrative Code Rule 11B-27.0011; and imposing the following penalties as set forth in Subsection 943.1395(7), Florida Statutes (2003): issuance of a written reprimand and placement of Respondent on probation for two years under conditions as specified by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 7th day of December, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2004.
The Issue The issue in this case is whether Respondent, Theodore Lazier, Jr., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Law Enforcement, Criminal Justice Standards and Training Commission, and dated June 18, 2004, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Commission is charged with the responsibility for, among other things, certifying individuals for employment or appointment as a law enforcement officer and investigating complaints against individuals holding certificates as law enforcement officers in the State of Florida, pursuant to Section 943.3195, Florida Statutes. At the times pertinent to this matter, Respondent, Theodore Lazier, Jr., was certified by the Commission as a law enforcement officer, having been issued Law Enforcement Certificate Number 138687 on August 20, 1993. Since being certified, Mr. Lazier as been employed as a correctional officer at the Dade Correctional Institution (hereinafter referred to as the "Correctional Institution"), a state facility. On and between November 14, 1999 and September 24, 2003, Mr. Lazier, while working as a recreational supervisor, brought items declared to be contraband into the Correctional Institution. Those items included movies, candy, razor blades, and one pair of athletic shoes with cleats. When the items of contraband were discovered by Correctional Institution officials, Mr. Lazier admitted bringing the items to the facility, a fact which he also admitted at the final hearing. He also explained why he had introduced the items into the facility and, while his explanation does not exonerate him from the charges in this case and apparently constituted grounds to terminate his employment at the facility, his explanation at least dispelled any thought that he had introduced the items for any purpose other than assisting him in the discharge of his duties. As for the movies, Mr. Lazier testified convincingly and without any evidence to the contrary being offered by the Commission that he had been given specific permission to show movies to inmates as long as those movies did not contain sex or violence. That permission was given by the individual who served as warden prior to the current warden's employment. The candy consisted of small pieces of primarily hard candy which Mr. Lazier used to reward inmates that assisted him as "aides" and other inmates who gave him "thoughts for the day." The razor blades, which are the most troublesome items of contraband he brought into the facility, were used by inmates, under Mr. Lazier's supervision to work on sports equipment, like the weight-lifting benches. The razor blades were collected, accounted for, and stored under lock and key after their use. Finally, the one pair of shoes introduced into the facility by Mr. Lazier was used by inmates participating in football. The bringing of the items of contraband into the Correctional Institution, other than the movies, constituted an act which would constitute a felony offense as specified in Section 944.47(1)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission finding that Theodore Lazier, Jr., violated Section 943.1395(7); dismissing the allegation that he violated Section 943.1395(6); and suspending his certification for a period of one year. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Theodore Lazier, Jr. 225856 South West 132d Court Naranja, Florida 33032 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure practices and discipline of correction officers in the State of Florida. The Respondent is a certified corrections officer in the State of Florida, employed at times pertinent hereto at Broward Correctional Institution as a Corrections Officer I. On June 17, 1982, assistant personnel manager for the Broward Correctional Institution, Virginia Dolson, was arriving at the institution for work at approximately 7:40 a.m. She and her companion, Marie Lombardi, walked past the guard post occupied by a vehicle in which the Respondent was sitting. As they approached the vehicle closely, they noticed that the Respondent was asleep with his head leaning against the screen over the vehicle window on the driver's side. They spoke loudly in his presence and he took no notice. Finally, another corrections officer, Sergeant Pepitone, tapped on the side of the vehicle with her umbrella, causing the Respondent to awaken. On June 24, 1982, at approximately 7:50 a.m., Marie Lombardi and Virginia Dolson, were leaving the parking lot, approaching their work place and observed the Respondent standing near a vehicle parked on guard post #1. They observed the Respondent aim a pump-action shotgun into the air, sight down the barrel and pump the gun twice as though a round were being placed into the chamber. It is the policy of the Department of Corrections to never remove a weapon from a vehicle unless "probable cause exists for doing so. Correction officers are instructed not to remove such weapons from vehicles while merely standing beside a vehicle on a guard post. On June 25, 1982, Lieutenant George Palacios, a shift lieutenant with the Broward Correctional Institute was on duty at the central control room. He attempted to communicate with Officer McWhorter on guard post #2 that day and his initial response was very slow. Later that morning, at approximately 7:15 a.m., he again attempted to contact Officer McWhorter and received no response on Officer McWhorter's truck radio. Lieutenant Burnstein and Sergeants Brothers and Moskowitz then drove to the Respondent's guard post and observed the Respondent sitting in his truck on post #2 with his head leaning against the window on the driver's side. They walked close to the truck and observed the Respondent with eyes closed and mouth open, appearing to be asleep. The window was half open and from a distance of about 3 feet, Officer Burstein said, "Officer McWhorter are you awake?" He received no response and repeated this statement three times, each time receiving no response from the Respondent. Sergeant Brothers walked around the truck, directly in front of McWhorter, and waved his arms and again received no response from Officer McWhorter. Officer Burstein did the same and then walked to the side of the truck and hit it with his hand. The Respondent still did not move. He hit the truck a second time and McWhorter moved his head and appeared to reach down at the floor of the truck. At that point the Respondent was relieved of his duties at post #2 and he and Lieutenant Burnstein came back to the office of the "captain" at the administrative offices of the institution. Captain Thomas, the Respondent's supervisor was advised of the incident. A meeting was conducted to discuss this incident with the Respondent during the course of which the Respondent's behavior was characterized by incoherent, confused speech, and bloodshot, glazed-appearing eyes. Officers Moskowitz, Brothers and Burnstein opined that he appeared to be under the influence of alcohol or drugs. Captain Thomas, pursuant to Rule 33-4.02(10), Florida Administrative Code, asked the Respondent to submit to a urinalysis and blood test, but the Respondent refused. On other occasions, Sergeant Brothers had observed the Respondent appearing to be under the influence of alcohol or drugs in that his conduct was characterized by slurred speech, eyes that did not dilate, uncontrollable eye movements and a general appearance of disorientation. Superintendent Robert Bowler, formerly of Broward Correctional Institution at times pertinent hereto, also had a meeting with the Respondent on June 25, 1982, and observed that the Respondent appeared to be "under the influence" that morning in that he appeared disheveled, groggy and otherwise disoriented. It has been established that the Respondent was under the influence of alcohol or another intoxicant on the above occasion. On May 25, 1982, Sergeant Aldean Wright, a Corrections Officer II at Broward Correctional Institution, was acting officer in charge. On that evening, the Respondent was assigned to perimeter post #2 for one-half of the shift, but left his post without permission and went to a truck stop for breakfast before reporting inside the institution for the second-half of his shift. He then lied about his whereabouts during that absence. Sergeant Wright remonstrated with him about his absence from his post without leave and gave him a written reprimand. (Petitioner's Exhibit G) Former correctional security shift supervisor, John Kording, described past disciplinary counseling directed at the Respondent for an infraction involving inattention at his post position, specifically, performing mechanical work on his "post vehicle" when he should have been observant of his assigned portion of the compound and inmates. This incident occurred in July, 1981. On December 22, 1981, Officer McWhorter wrote and submitted an incident report directed to the Assistant Superintendent of the institution, circumventing the security department's chain of command and was "counseled" regarding this infraction by Mr. Kording. No evidence was adduced regarding his use of unnecessary force upon an inmate however. The Respondent was an employee at Broward Correctional Institution from 1978 through July, 1982. For the above-stated infractions, the Respondent was terminated with prejudice in July, 1982. The Respondent had been furnished all pertinent rules for employee conduct for correctional officers such as himself when employed at this institution and for the Department of Corrections, among which rules was that which prohibited the use of narcotics or intoxicants while on duty, as shown by a receipt for the rules signed by the Respondent (Exhibit N). The Respondent was aware of the pertinent rules of conduct with which he was to comply during his employment with the Department of Corrections and failed to adhere to them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the arguments of the Petitioner, It is, RECOMMENDED: That Corrections Officer Certificate No. C-6698, held by the Respondent Craig C. McWhorter, be revoked. DONE and ENTERED this 28th day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Craig McWhorter 1131 Northeast 201 Terrace North Miami Beach, Florida 33179 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioners and Respondent have stipulated to the following facts: The three petitioners are inmates at Union Correctional Institution, Raiford, Florida, in the custody of the Department of Corrections. All three of the petitioners have had their PPRD's established by the respondent-commission as follows: In June of 1982, Mr. Piccirillo's PPRD was established by the commission to be September 30, 1986. In January of 1982, Mr. Adams' PPRD was established by the commission to be November 11, 1991. In December of 1982, petitioner Hemming's PPRD was established by the commission to be September 29, 1993. Subsequent to the commission having established their PPRD's, all three of the petitioners have been transferred from one Florida penal institution to another state institution as follows: Mr. Piccirillo was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1982. Mr. Adams was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1932. Mr. Hemming was transferred from Avon Park Correctional Institution to Union Correctional Institution on February 16, 1983. The petitioners were not transferred to Union Correctional Institution because of any unsatisfactory institutional conduct at their former institutions. Petitioners are currently scheduled by the commission for biennial interviews to review their established PPRD's as follows: Mr. Piccirillo is scheduled for a biennial interview in March of 1984. Mr. Adams is scheduled for a biennial interview in October of 1983. Mr. Hemming is scheduled for a biennial interview in September of 1984. The following additional findings are made from evidence presented at the hearing: The respondent-commission has not made a finding that any of the petitioner's institutional conduct has been unsatisfactory under the challenged rule nor has respondent extended their PPRD's or refused to authorize their EPRD's. In applying the challenged rule, the fact that an inmate has been transferred to a higher custody or higher level institution is only considered to be unsatisfactory institutional conduct where the commission receives documentation evidencing institutional misconduct as the basis for the transfer. Petitioners transfers from other institutions to Union Correctional Institution would not be considered unsatisfactory institutional conduct under the challenged rule because there is no documentation of institutional misconduct which led to these institutional transfers.
The Issue The issues to be determined in this case are whether Respondent has failed to maintain the qualifications required for a correctional officer pursuant to Section 943.1395(7), Florida Statutes (2006),1/ and Florida Administrative Code Rule 11B- 27.0011(4)(b), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified by the Department as a correctional officer in the State of Florida, having been issued Correctional Certificate #170241. Respondent and Candida Nowlin are engaged and live together. They have lived together since 2002. Ms. Nowlin has two children from a previous relationship and she and Mr. Saria have a child together. At the time of the events giving rise to these proceedings, the couple was under a great deal of stress because of a serious accident involving one of Ms. Nowlin's children. On the evening of November 6, 2006, Mr. Saria and Ms. Nowlin had an argument. She asked him to leave, and he refused. In his anger, he slammed a cordless phone in their home against the kitchen counter. However, there is no competent evidence that he struck or grabbed her, or threw her into a wall. The only competent testimony presented is that he touched her arms in order to move her out of his path as he went to another room in the home, but did not harm her in any way. Ms. Nowlin felt that she and Mr. Saria needed some time apart, so when Mr. Saria refused to leave their home, she went with her young daughter next door to her neighbor's home to call the police. Her neighbor, Ms. Epley, was having a dinner party. She noticed that Ms. Nowlin was crying and she let her use her phone, but was distracted by her hostess duties. She did not remember Ms. Nowlin being injured, and Ms. Nowlin did not tell her that Mr. Saria had beaten her up. Ms. Nowlin called the police from Ms. Epley's home. Two officers came to the home, then-officer Barraclough and Sergeant Spears. They interviewed Ms. Nowlin, Ms. Epley, and Mr. Saria, and arrested Mr. Saria and took him away. After they had removed Mr. Saria from the home, the two officers completed statements from both Ms. Epley and Ms. Nowlin. Officer Barraclough testified that he saw scratches and red marks on Ms. Nowlin's arms. However, his testimony was contradicted by all other witnesses who testified, and is not credited. Sergeant Spears, who did not testify, took Ms. Nowlin's statement. While she was doing so, Ms. Nowlin's mother came to the home. Her testimony, which is credited, is that Ms. Nowlin had no bruises or marks on her arms and that Ms. Nowlin was primarily upset at that point because Mr. Saria had been arrested. The only competent evidence of what happened between Ms. Nowlin and Mr. Saria during their argument is the testimony of the two of them. They both deny vehemently that he struck her or engaged in any unwanted touching. They both insist that they had an argument because of the amount of stress they were under, and that the police were called because Ms. Nowlin felt they needed some time away from each other.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009.
